February 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH ABBOTT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 99-10-0636.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2009
Before Judges Wefing and LeWinn.
Defendant appeals from the trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm the order under review but remand to correct the judgment of conviction.
A jury convicted defendant in 2000 of first-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(a); second-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2; third-degree possession of a weapon (a razor knife) with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). The trial court sentenced defendant to an aggregate extended term of twenty years in prison, with a ten-year period of parole ineligibility.
Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion, State v Abbott, No. A-3331-00 (App. Div. Nov. 21, 2002). The Supreme Court denied defendant's petition for certification. State v. Abbott, 176 N.J. 74 (2003). In December 2003, defendant filed a PCR petition. Counsel was assigned to represent defendant. After hearing oral argument, the trial court denied this petition without prejudice in March 2004. Defendant filed a second PCR petition in June 2006.*fn1 Counsel was again assigned to represent defendant. The trial court heard oral argument on defendant's petition in March, 2008. Defendant has appealed from the trial court's order denying that petition.
The evidence presented at defendant's trial was entirely circumstantial. K.M. was awoken in the early morning hours of August 30, 1998, in her apartment in North Wildwood when she heard the sound of the jalousies on her front door being moved. Thinking it was her boyfriend, she headed toward the door and called out his name. She saw a man crouching by her door suddenly get up and run away. She saw a tear in the screen, that one of the jalousies had been removed, and her door unlocked. She immediately locked the door and called police. Defendant was seen running behind a nearby motel and was apprehended by the police. He had a knife and an open condom in his pockets. He had a cut on a finger that was bleeding but no blood was found on K.M.'s door. He did not have a satisfactory explanation for his presence, and he was originally charged with a disorderly persons offense and released. Subsequent investigation revealed that defendant had a lengthy criminal record, which included convictions for burglary and for sexual assaults. Defendant was eventually indicted for the crimes for which he was convicted.
At defendant's trial, the State was allowed to introduce evidence of defendant's prior convictions for sexual assaults to establish his motive. Defendant challenged that ruling on appeal but this court rejected his contention, and we may not revisit that issue.
Defendant raises the following contentions on this appeal.
THE PCR COURT ERRED IN DENYING MR. ABBOTT'S PETITION FOR POST-CONVICTION RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, WHERE IT WAS SHOWN THAT HIS TRIAL COUNSEL DID NOT ADEQUATELY INVESTIGATE THE CASE AND THAT COUNSEL IMPROPERLY ADVISED MR. ABBOTT NOT TO TESTIFY AT TRIAL
A. Trial counsel failed to conduct appropriate investigations in preparing Mr. Abbott's defense.
B. Mr. Abbott was denied effective assistance of counsel where his trial attorney improperly advised him not to testify on his own behalf
C. Trial counsel failed to request a DNA test on the condom that was found in Mr. Abbott's pocket during his arrest, the result of which would have mitigated the evidence against him
D. The PCR court improperly denied Mr. Abbott's petition for Post-Conviction Relief without conducting an evidentiary hearing in this matter
THE PCR COURT SHOULD HAVE GRANTED MR. ABBOTT'S MOTION TO HAVE A POST-JUDGMENT DNA TEST ON THE CONDOM THAT THE STATE USED AS EVIDENCE AGAINST HIM AT TRIAL
We are satisfied the trial court correctly rejected the arguments that defendant presented to it. We have not been asked to pass upon the question whether effective counsel would have specifically challenged the sufficiency of the evidence to support a conviction for attempted aggravated sexual assault, and we express no views on whether that question may be raised at this late juncture. A conviction for attempt requires proof beyond a reasonable doubt that a defendant committed an act "constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." N.J.S.A. 2C:5(a)-3.
The matter must be remanded to correct the judgment of conviction, which states that defendant was convicted of first-degree attempt to commit aggravated sexual assault. Under N.J.S.A. 2C:5-4, an attempt to commit a crime of the first degree is, with certain exceptions not here applicable, a crime of the second degree. The trial court recognized at sentencing that defendant's conviction was for a second-degree crime, but the judgment of conviction erroneously lists it as a crime of the first degree.
The order under review is affirmed, but the matter is remanded to the trial court to enter an amended judgment of conviction.